The evidence fully supports the court's finding that there was none in fact. (Sleeper Lounge Co. v. Bell Mfg. Co., 9 Cir., 1958, 253 F.2d 720; Quaker Oats Co. v. General Mills, Inc., 7 Cir., 1943, 134 F.2d 429.) This brings us to the "family of trade-marks" claim.
The case might be relevant if the Indianapolis Colts were arguing not confusion but misappropriation: that they own the goodwill associated with the name "Baltimore Colts" and the new Baltimore team is trying to take it from them. Cf. Quaker Oats Co. v. General Mills Co., 134 F.2d 429, 432 (7th Cir. 1943). They did make a claim of misappropriation in the district court, but that court rejected the claim and it has not been renewed on appeal.
In the Trinidad case the word "Ruberoid" as a misspelled version of "Rubberoid" was rejected as descriptive, when applied to roofing material containing no rubber but having some of the properties of rubber. In later cases the rule has required the rejection as exclusive trade names of such terms as "Steem-Electric", in Steem-Electric Corporation v. Herzfeld-Phillipson Co., 7 Cir., 118 F.2d 122; "Kelp Ore", in Brooten v. Oregon Kelp Ore Products Co., 9 Cir., 24 F.2d 496; "Dridip" in Ungles-Hoggette Mfg. Co. v. Farmers' Hog Cattle Powder Co., 8 Cir., 232 F. 116; "Nervine" in Richmond Remedies Co. v. Dr. Miles Medical Co., 8 Cir., 16 F.2d 598; "Coco-Quinine" in Warner Co. v. Eli Lilly Co., 265 U.S. 526, 44 S.Ct. 615, 68 L.Ed. 1161; "Toasted Corn Flakes" in Kellogg Toasted Corn Flake Co. v. Quaker Oats Co., 6 Cir., 235 F. 657; "Shredded Wheat" in Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73, 77; "Oaties" in Quaker Oats Co. v. General Mills Co., 7 Cir., 134 F.2d 429; "Cellophane" in Du Pont Cellophane Co. v. Waxed Products Co., 2 Cir., 85 F.2d 75, certiorari denied E.I. Du Pont De Nemours Co. v. Waxed Products Co., 299 U.S. 601, 57 S.Ct. 194, 81 L.Ed. 443; "No-D-Ka" in No-D-Ka Dentifrice Co. v. S.S. Kresge Co., D.C.Mass., 24 F.2d 726. The catalogue might be expanded almost indefinitely with identical significance.
This kind of testimony in trade-mark and unfair competition cases is often and perhaps generally of little weight, and in the present case I do not feel that it is impressive. See "The Unwary Purchaser" 8 Mich. Law Rev. 613, 618; Dixi-Cola Laboratories v. Coca-Cola Co., 4 Cir., 117 F.2d 352, 360; DuPont Celophane Co. v. Waxed Prod. Co., 2 Cir., 85 F.2d 75, 80; Quaker Oats Co. v. General Mills, 7 Cir., 134 F.2d 429, 431. Only occasional cases of confusion or thoughtless errors by very inattentive purchasers are of little significance.
See Duraco, 40 F.3d at 1453; see also infra at 205-08 (discussing implications of defendant's intent to copy). A presumption to the contrary would be mandated, if ever, only in the narrow class of cases where both (1) a product configuration is desirable to consumers primarily because of the configuration's inherent or acquired identification with the original source, and (2) the copier adopts affirmatively misleading labeling and/or marketing for the copied product, cf. Quaker Oats Co. v. General Mills, Inc., 134 F.2d 429, 432 (7th Cir. 1943) ("The pirate flies the flag of the one he would loot. The free and honorable non-pirate flies the colors of his own distinctive ensign.").
Appellee insists that we should also count for it the fact that its trade dress is different from that of HUGGIES. It is settled, however, that a distinction in trade dress cannot weigh against likelihood of confusion with respect to the registration of a simple word mark like DOUGIES. The reason is that such dress might well be changed at any time; only the word mark itself is to be registered. Vornado, Inc. v. Breuer Electric Mfg. Co., 390 F.2d 724, 727, 156 USPQ 340, 342 (CCPA 1968). Accordingly, HDE's strong reliance on Quaker Oats Co. v. General Mills, 134 F.2d 429 (7th Cir. 1943), is misplaced. That pre-Lanham Act decision did not at all involve registration of the mark "Oaties" (registration had in fact been denied) but solely differences in packaging and trade dress as against "Wheaties." Belatedly, appellee argues that "HUGGIES" is descriptive but this separate defense was not raised in its pleadings or briefs below.
We find no evidence of bad faith on the part of Ever-Ready, but the latecomer has a responsibility to avoid confusion. Cases such as Quaker Oats Co. v. General Mills, Inc., 134 F.2d 429 (7th Cir. 1943), and Southern Shell Fish Co., Inc. v. S. Felicione Sons Fish Co., Inc., 108 U.S.P.Q. 289 (Comm. of Pat. 1956), do not conflict with the principles stated above. In Quaker Oats, this court held that the mark "Oaties" did not infringe General Mills marks, Wheaties, Kornies, and Maizies, in the light of substantially different package designs, a clear statement appearing on the box that the cereal was manufactured by Quaker Oats Co., and the name Quaker appearing at 20 places on the box.
Nor do we find that the decisions cited by the solicitor as pertinent here require a different result. In each of the cited cases, General Baking Co. v. Grocers' Baking Co., 3 F. Supp. 146 (W.D.Ky. 1933); ("SUNSHINE VITAMIN D" applied to bread containing Vitamin D); Quaker Oats Co. v. General Mills, Inc., 45 F. Supp. 462 (N.D.Ill. 1942), aff'd, 134 F.2d 429 (7th Cir. 1943), ("OATIES" applied to oat cereal); Skinner Mfg. Co. v. General Foods Sales Co., 52 F. Supp. 432 (D.Neb. 1943), aff'd, Skinner Mfg. Co. v. Kellogg Sales Co., 143 F.2d 895 (8th Cir. 1944), cert. denied, Id. v. General Food Sales Co., Inc., 323 U.S. 766, 89 L.Ed. 613 (1944), ("RAISIN BRAN" applied to cereal); William Wrigley, Jr., Co. v. Grove Co., 161 F. 885 (S.D.N Y 1908), aff'd, 183 F.2d 99 (2d Cir. 1910), ("SPEARMINT" applied to chewing gum); we think that the marks there in issue were devoid of the reminiscent, suggestive or associative connotation which we here find to be persuasive as presented on the record below. Thus, on the present record, the decision of the Trademark Trial and Appeal Board must be reversed.
"* * * The mere use of a name which the defendants had a right to use does not in and of itself constitute unfair competition. Kellogg Company v. National Biscuit Company, 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73; Quaker Oats Co. v. General Mills, Inc., 7 Cir., 134 F.2d 429."
McCormick Co., Inc. v. B. Manischewitz Co., 6 Cir. 1953, 206 F.2d 744, 746; California Fruit Growers Exchange v. Sunkist Baking Co., 7 Cir. 1948, 166 F.2d 971; Sleeper Lounge Co. v. Bell Manufacturing Co., supra. "Shredded Wheat" — Kellogg Company v. National Biscuit Company, 1938, 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73; "Wheaties vs. Oaties" — Quaker Oats Co. v. General Mills, Inc., 7 Cir. 1943, 134 F.2d 429. We can find no proof of any possibility of similarity "such as would cause confusion of any appreciable number of ordinarily prudent purchasers as to the source of the goods."